# Petition for Writ of Certiorari — Parker v. Citizens Committee for the Hudson Valley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0365%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 400 U.S. 949 ## Text - LIBRARY " SUPREME COURT On Supreme Court of the Hntivd State :; _OCTOBER TERM 1970» 3 oe Winacoke W. Parker, individually and as Comn't: “joner of the Departme nt of Transportation of the “State of oe Eee Te oe Se Pitan ! Be | = , Petitioner, and Join Voupry indig achintly and as ‘Seeretary of Trans- portation of the Uiited States; Warrer J. Hicker. in- hing) and as Secretary of the {nterior ofthe Wnited States, STANREY S. Resor, individually and as Seeretary. . ‘of the Army of -the’ United States, and Wituia F: CASSIDY, individually and as ‘Chief of engineers, Corps of Engineers of the U.S. Army, ; agaiust Citizens COMMITTEE FOR THE I] ?psON VaLLey, Sierra Cuvs.- ’ Respondents. = . + *. “4 PETITION FOR A WRIT OF CERTIORARI TO JHE UNITED STATES COURT OF APPEALS FOR THE fe _. SECOND CIRCUIT - harris J-hernowitz” Attorney General of the int State of New York "a Attorne’ y for Petitioner ‘SO: Céntre Street . ; ‘ New York, New-York 10013-—~ Samuen.aA. Hirsnowirz- _ First Assistant Attorney General- Jorn Il. Sacus- Assistant Attorney: ’ General ° of Counsel. AND THE VILLAGE op ‘Tafesrown, New York, —-—————— w > / ° ‘TABLE OF CONTENTS 2 PAGE Citation to the Opitions Below. sy ee PLS Ree MB irg rian RI ae rec Cec aN faut yt ea yaaa weedc A hoe : Se af SS Pee eH cab A See ae tae \ ’ ; . Statutes Involved ....... 00.2... pre tae ee eee : * . : ee Statements of the Case .....0..... egy At Coa” SPORE oe aa a cecal wash ie Spike RO eet hee ikaeaes pa cueenee een evade benans so ee Reasons for Granting the Writ .......... ‘eetaw ee ht 7 eas F — determination af the Courts- +yélow that ‘dikes’? are involved in the construction of thd. .— . ‘Expressway conflicts with prior decisions of this > Court,. gives a strained and illogical interpreta- tion to Sections 9:and 10 of the: tivers and Har- | hors Act of. #899 and violates a lone- standing ad-. NG - .__ministrative interpretation of the statutes in GO on i as ee ee os a I . The mere possibility that the Hudson River Ex- . ; pressway midy involve construction of a cause- . ad ‘way within the meaning of Section 9 of the oe * Rivers and Harbors Act of 7899 did not give the .. 4 ears helow authority to enjoin the issuance of. 1? . a permit under Section .10 of that Act . 1 Aes al 3. The determination of the Courts below that the §” plaintiffs helow, lacking a tegally protected inter- | est, lacking any injury and lacking a specific stat- ute on which to bring suit, have standing to chal- lenge the actions -taken by the State and Federal officials was an unwarranted - ‘application of en, cent decisions of this ‘Court ......... Ere are :15 : : 2 li _.-*”. TABLE OF CONTENTS ee EIEN Ne ee, Fa rar Fy al PAGE Conclusion Ligue tere rts phar ree IOI el ies IS cee nae, rs a ; * AY ppendix ee Set Mk We i ee ee Mie et “da. Judie nt of Affirmance ESO TET CL Te ey Wa ‘Appe nulis ea or aa RE. weary ete ee wee Dla : Append C MwA A NES ee AO KM ele alee 6 BERS ee Re OR Da Cases. s PAGE lela Life luc. Co. v. Hayworth, 000 U.S. 277 (4987) 14 Barlow vy. ( ollins, BOT U, s. Ry. CAI) cc ee vost, vo Bloch River Re qulating Districi v. Adirondack League * Club, Wi Nz Y¥. 475 (1954) appeal disinissed do Sar 58) eee ee De POOLE POE pee Boston Sand Co. v. U.S ate U. S. 7 1 (Uses Prine 5 | Citizens Commillée, et alo. we olpe et al., 425 I. 2d Sie & at Cire 197 0). SP sAe ew Ses SECT ee Py eee ek ae : y C ifizons C anmitte: ebakveV one et al., 302 F. Supp. a 283 (S.D.N.Y, 1969) /-..: eerews ee re Ne ee? 2 Cytizens Committec, chal aw V ol pe, el al. 297 I’. Supp. SO4 (S.DIN EY, 1962) bien da wana kay Meee a yoru i) ~ Cotnty of Albany v. Hooker ry 204 x. Y. ,o (1912) fe, OMe Data Proc SATNY.- Service v. Fann. “307. U. Ss. 150 tee A VO cae npr ane itasena ‘sn a5 Ae AT Flast v. Collen, 393-US, 83 (1968) mee Rees Ee TABLE OF CONTENTS eee. cane Glus v. Brooklyn Terminal, 359 OF S. 231 sa ete are Golden v. Zwickler, 394 U. RIES (TIO) 8 Ee a i as sf 14 : Mastéo Plastics Co. v. Labor Bd, BHO U. a 2A) (1956) ig) See | Muserat v. U. 8.219 U. 8. 346 (1911) lee 1 N.L.R.B. v. Coca Cola Bottling Co., 850 U. 4, re (19: 56) Mieke meee is , SN Og Fee Paks Soret ee “Richards ve. §., 369 T.8. ! Ts een en aera © © Scenic Hilson Preservation Sr ene v. EPC. , 354 | F B. 2d 605 (2d Cir, BIOS} cos 2 ee ina yan 17 Vila v. Tallman; ¢ 380 UL S. 1, 16 (1965). oa |, eo Pre ee U nite d States v. Midwe sl gil Co., 236 U.S. 459 (1913 3) eon United State: s v. Re veaic Steel Corp., 362 U. S. 482 A ee eh pis ee United States v. U nion sane Railw ay; sa ®s B..152 Pee yc eee x atas he Ra wen ka Vee a Wisconsin v. [linois, 278 U.S. 367 (1929) calty Ga aty Ry A STATUTES | nike PAGE. Administrative Pr ocedure Act, 5. USC. §§ “OL. et fem. 1 (Supp. LS Sey one ROREREST SEO CRIABA ES aS boa focal sa ree of ‘Pransporation het, 49 U.S.C. NSS oye Se Oe Sige G15 Rivers and Harbors Act of 1899, see: 9, 33..U.S.C. SI a ccac cece cr elapeageeess 86,9) 11,13 13,44, 15 : Rivers and Harbors Act of 1899, °s see. 10, 33 U.S.C. - — verry Sle pune aaa ys 3, 7, 9,11, AB, 14 15. 2 iv. hee _ TABLE OF ‘CONTENTS | : 7 . uF ; Ovrytons aie 15 Op. A.G. 515. (STS) , dee S50. wea coe, Viva buces Tb Op’ A. G.d26-(1880) ooo : beeen las 16°Op. A. G2 479. (1880) Gre spi ee OE Op, Be B10 CI) isaac lags nce res ees i . - waren ENT 2 * . - ¥. . . -- | ; }* Chambers, Tochnic ‘al Die tions ur v3 ord. Rey ise Hdition * with Suppleme RE CIDOO) vicgx paods aku eles es: Websters, Third New Eiaces pele y (1966), @ : ° ® of - o - - ° . . ss . ; e . . . ‘ . * e e e. ’ ‘ * bal °, sae . = ‘ - *. a . * & ° > ‘ * . . ° . . . . ' oe | « % j , . a » 1L ” 12 ‘12 , PAGE,” | Supreme Court of the ie States oa ee oct OBER Tis a 1970 Tato opore W. Parker, adividaiie and as beet ar oO “of the Department * T Pransportation. of the State of ° New —— on OS Z ie sate eee 3 ; Putin. a. ‘A a iw . ‘ ‘ _ i Ps 1 \ ? _ dividually andias Secretary.of the Interior of the U nited ‘ States, Sraxney S. Resor, individnally-and_as- Seerctary of the’ Army of ther United’ States, and. Wititiam F. Cassiby, individually and ‘as: Chicf ef Engineers; Corps of Engineers of. the U.S. Army, : * against re Peta . Citizens ComMitree For THE Hivpson Vatrnry, Srerra Cuvsp “AND THE Vi=nacE or Tarryrown, ne w York, ' Re spondin ts. + ot “PETITION FOR A WRIT OF CERTIORARI TO THE | VRIES STATES COURT’ OF APPEALS FOR THE: ° SECOND CIRCUIT | . A vs ae : oe \ Petitioner, the Cénniiitilbineg of. the. Depatigent of Transportation of the State of New. York, prays’ that a .° writ of certiorari issue to review the: judgment of the United. States Court of Apjicals for the Second. Cireuit in the consolidated. cases of Citizexs Committee for the Hud- ‘ son Valley, thé Sierra Club and th e a illage.of Tarrytown, : ee Sao ae aan | t 7 oe “Ly Ss The FOR UWA is bene « crstructed in response tos an extremely erifiéal trattie situation. whieh hes been de- veloping in) the “Parryiown- rotenville corridor over a ninbe rool yeatss Tt is undisputed that the oxisti ne route serving this « areas’ Us. Route Q is incapable of handling: he ever-ines singe ie of tratiie; latest staUsties eon. * feta lvoe aes Aa this route has the highest accident rate of any roadway in the vicinity. Hlence, the proposed 10. nile EXpressway has received top priority from State of- fictals., — . , x" ' thaws of New York, 1965, as iunended by Chapter f28 of the Laws of New York,” » 1966, N.Y. Afi ivhway Law © 540-6 the State Legislature -enacted the Expressway Law to provide for a new road- way in the Route 9 corridors Since that time. the New mands of the T arrytown-:Crotonville. tra fie corridor. It should he noted at thie outset that fie proposed express ay is an entirely intrastate rocdway. No federal funds are in any way involved in its construction. © ) . However, since a L portion of the roadway is to be built upon filfto be placed. in the Tdgon River,* it was neces- ssary for the New York State Departine nt of Tr ansperta- > tion to, obtain an appropriate permit. from the Corps “of Knugineers, United States Army, since the C orps ( diction over the Huson River, a navigable body of water, After receipt of New York’ s appheation for a permit, the Corps of Engineers proceeded to study -the TExpiressway. project. Asa result of their studies, hearings, consulta- tions with other federal agencies, ineluding the United States Department of Interior, it was decided to grant the necessary permit to the New York State Department of Transportation, | las. Juris The permit gives permission to tlie’ New York State De- partinent of Transportation: | ' | SITS dredge and, place fill, protected hy stone ape protection and to constrict piers and bulkheads with floats and mooring piles; the dredged matter to Re suitably etained ly dikes to, prevent its retum jnto the waterway:.in the Tudson’ River, between Tarry- . | town and Ossining, Westchester County: New York subject: to certain conditions not pertment hereto.’ Lumediately vatter the Corps. of lngineers issued "the permit’on January 27, 1969, respondents commenced these actions anf sought a preliminary imfimetion fo restram the delivery’ of such permit. Jurisdiction, was atlescdly— based on thie Administrative 1 procedure Act, 3 U.S.C. $5 701 ef seq. (Supp. IV). dogs | This motion for a pre Timinary " Wjunction was ‘dénied by the Distrie Court. Citizens omilittee for Me Alidson Val- ley v, Volpe, 297 F. Simp. S04 (S.DeX.Y. 1969). The United States Court.of Appeals for the Second Circuit atiirmed the denial of injunctive relicef-in an unreported decision on March 19, 1969,- but ordered the entire matter remanded * The proposed fill is in the area of the Tappan Zee, the widest. part of the Hudson River (approximately 11.600 feet wide). The fill will extend between 300 feet-and 1350 feet into the river, de- pending on its location, with an average incursion of 605 feet, e oy fy to the District Court for an early. trial pursuant. to fhe applicable rules of the Court. Thereafter, a trial was held on all issues raised in ‘the complaints. During the trial, which consunied 29 days, the court heard over 4,000 pages of testimony by ovér 20 , witnesses ard examined well over 1,000, pieces of docu-: mentary evidence, including studies, maps and-dixgraims of the proposed expressway. In its decision dated July 11,1969, the Court ruled that it had jurisdiction to entertain the actions, that plaintiffs had standing to raise the issues presented to the Court, that the Corps of Engineers exceeded its statutory author-_ ity in issuing the fill permit to the New York State De- partinent of Transportation and that thé Highway Law -of the State of New York, insofar as-it delegated certain: | powers to the Commniissioner of Transportation, was riot unconstitutional, “A ¢opy of the District Court’s decision ————— mee ie ix annexed hereto as Appe mndix. Bcd: Si eae R Asa result of the Distr ict Court’s devision; an order was entered on July 25, 1970. declaring that the construction of the: Hudson River laxpressway by the State of New York . involves the construction of “dikes?? and cause ways Within the meaning of Section 9 of the Rivers and Harbors Act of 1899, 30 Stat. 1151, 83 U.S.C. sec. 401 and that con- struction of said ‘*dikes’? requires the consent of the Con- cress’ af the United ‘States and the construction of -said causeway requires consent of the Congress of the United States and the approval. of the Seeretary of Transporta-_. “tion-of the United States pursuant to the Department of. wT rans portation Act, 49 U.S.C, § 1055(2). ‘The Court: further decreed that, as a resubt of such holding, the Corps of Engineers had exceeded its statutory -anthority in issuing the permit f the State of New York and said permit was declared null and void. The. order enjoined the Corps of Tngincers from issuing a pemnit to the State of New York until the requisite approvals were obtained from the Congress of the’ United States. and from the Secretary of Transportation of the United States e Ai pe ae . ( | : Me ~. @£ _and the State of New York-was pérmanently enjoined from proceeding in any matter with construction of the Hudson River: Expressway untid the tequisite, federal approvals were obtained for the construction of the “‘dikes’? and ‘auseway. .A copy of the order of the’ District Court is annexed hereto as appendix C. On appeal to the United States ‘Court of Appeals for the Seeond Cireuit, the decision of the Iistrict CouFt was af- firmed in an opinion dated April 16, 1970, the Court. of * Appeals accepting the District Court's determination as to ‘the standing of plaintiffs and the pre semee of ‘dikes’? and a causeway involved in the construction of the: Hndson River Expressway. A copy of the decision and judgment of the Court of Appeals is annexed ‘hereto as Approndix “eé A”, r 7 _ Reasons for Granting the Writ 1. The duhcaibisdiilii of the Courts below that “dikes” are involved in the construction of the- Expressway conflicts with prior decisions of this Court, gives a strained and ‘illogical interpreta- tion to Sections 9 and 10 of the Rivers end Har- | ing ad-* bors Act of 1899 and violates a.long-sta - ministrative © interpretation of the statutes in =~ question. . : The permit in-qrestion was issued under the authority of Section 10 of the Rivers and Harbors Act of 1899, 55 U.S.€. see. 403. /Pliere-is no.question that the placing of fill and the construction of bulkheads in a navigable water- way are specifically named in Section 10 as activities per- . missible’ with approval of the Secretary of the Army -alone—not requiring a spécial authorization by Congress. This construction of Section 10 oe confirmed by this Court in Wisconsin v. Ilingis, 2 278'U. S..367 (1929), where — -it was stated (at 412-414): . * * * Congress, having stated in See tion 9 as to. what ‘particular: structures its specific consent should be re- quired, intended to leave to the. Seeretary of War, acting on the recommendation of the Chief of En- fineers, the determination of what should be approved : and authorized in the classes of .cases. deseribed in ‘the second and third-clauses of Section 10. Tf the see- tion were cohstrued to require a special authorization by Congress whenever in_any aspect it might be: con- sidered that there Was an obstruction to navigable’ c _paeityy none of the undertakings spec ‘tically ores for in the second and third-elauses of Sec tion 10 could safely be undertaken without a special authorization: of Congress. We dotnot think this was intended.- The Supreme Court of. Maine in Maine of cater Co. x. Kuick- bocker Steam Towage Coa., 99 Me.473, took the sanie . general: view. in construction ‘of ne same Sseetion. It held that the broad words of the first -clause. of that section were not intended to limit the second and third clauses and that Congress’s purpose was a direct pro-* ‘hibition of what was forbidden by them except when affirmatively approved by the Chief of E ne¢ineers and the Sceretary of War. We concur jin this view. The true intent of the Act of Congress was that unreasonable obstructions to navigation and navigable ‘apacity were to be prohibited and in the eases de- seribed in the second and third didads ot Section 10, the Secretary of War, acting on the recommendation of the Chief, of Engineers, was authorized to deter- ‘mine what in the particular cases constituted an un- reasonable obstruction. ' an This construetion of Scétion 10 is sustained by the uniform practice of the W ar Departme nt for nearly thirty Vestn, Nothin re HH HeeomeHieing in-interpre= tation - a doubtful or ago logs statute. United States ve Minnesota, 270 U. S. 181, 205; Su ending V., W ialiesion Wafer Power i 265 U. S. 322, 331; ‘Kern\River Co, ve United Slates, 257 U: S. 147, 154, United States ve Burtington & Missouri River R.R., ae oe | 98 U. 8. 334, 34 , United States. N, Le geetate 91 U.S . 2205. 2283 Fat v. Davis, 253 . 612, 627. The practice is shown by dis 4 opinion of the Acting - Attorney General, transmitted to the Secretary of War, 34 Op. Atty. Gen. 410, 416. The Secretary of War acted on this view on-\May 8, 1899, about two months after the passage of the Ket. This was fol- pwed by -the permits subsequently eranted down to March 3, 1925. The fact that: the Secretary of Ww ar acted on this a Was ‘Inade known to Congress by many Tepor i” ‘ 488, 491 (1960). ‘The phy sical action authorized here was the. fil ling of a portion of the Hudson River and tle con- struction of bulkheads to prevent the fill from sliding into’ the River—neither action requiring the special consent of Congress. The mere fact that the permit’ refers to. Bers ears not change the applicability of Section 10 ‘alter the fact that the physical action proposed under the permit does not requiré the consent of Congress. The District. Court’s determination that. “dikes”? are involved in the construction of the Expressway is based upon the: following reasoning which was adhered to by the Court of Appeals: Since the permit application sub- mitted to the Corps of Engineers mentions—the werd “dike, there is therefore a dike and consequently, the Corps of Engineers has no author ity to issue. the permit. The lower court’s overly simplistic approach to the word **dike’’ violated an elementary principle of statutory con- struction, indicated that the court failed te ead Sections Cf. United States v. Re “public Steel Corp.,. 362.1. S s. 482,: 401 and 403 as interdependent, failed to take into account a longstanding administrative. interpretation of the st: it- utes in question, and totally ignored the unimpeached testi-+ , mony by three expert Witnesses, who testified that there was mv ‘‘dike’’ within. the meaning of Seetien 401, involved _ in the construction of the Expressway. By exalting form 10 over substance, by relying on labels rather than reality, ‘and by failing to critically ex camine the functions to be " performed by the so-called ‘dike’”, the Court below has seriously undermined the authority of the Corps of En- _ gineers to issue fill permits and has delayed thegstart of “eonstruction on an urgently needed roadway in the State "of New York. Ina matter of such public importance, this ‘ourt should grant ce rtior ari. See, United States VOR o- public Steel Corp., supra; United States v. Union. Pacific Ru. Co., 8538 UL S112 (1957); Glus v. Brooklyw Terminal, - 359 U.S. 281 (1959). | ee ++ __Po-accept-the-determination-of4 he-court-betow would mean that such’ diverse projects as a state highway along the Ohio River in Louisville, Kentucky, a railroad right of way along the Cowlitz River in Oregon, a reereation area in the Charles River, Boston, Massachusetts, the run- ‘ways ‘at both LaGuardia and Kennedy Airports in New York City, the enlargement of Fort. Monroe into Mill. Creck at Hampton, Virginia, the creation of a new street along the Willamette River in Portland, Oregon, and the ! expansion of Kast Harbor State Park into Lake Erie were all constructed illegally because in cach | of these instances, as well as in nimerows others; the — for a fill permit mentioned the word dikes”? While this ¢ ourt in Wisconsin v. Illinois indicated that some 30-vears of consistent’ administrative pre antago ae preceded ‘that ‘ase (278 U. S. at 413), Wwe now have 70° ‘years of such practice during which the type of permit issued here has beén consistently authorized by the Seere- tary of the Army without special authorization by -Con- gres ‘‘Nothing is more convincing in interpretation of — a ee. Ne or Pears statute.” 278 U. S. at 413; Udall — . Tallman, gt U: S..1, 16 (1965). . And, as this Court vain (278 U. S. at sia), Congress has-been continually advised by heats ete., of this administrative interpreta- . tion. See: United States v. Midwest Oil Co., 236 U. S. 459, 474 (1914). « ae | & aol 7 Sd eee Urata It is submitted that ‘dian this court grants’ review of . this matter, the long standing: administrative practice of permitting the Corps of Enginecrs to issue fill permits - will be at an e nd and the responsibility will be thrust upon Congress to personally examine each application for a dredging and filling operation to be conducted in any navi- gable body of ivater in thé United Siates: Such an ap- proach is clearly contrary to the congressional intent em. bodied in #ie Rivers and: Harbors Act and makes the statu. tory language of these sections reductio ad absurdum. Furthermore, the available Jegislative history on Scetions a nt “TO TS Comple tely contrary to the decisio ns of the. ~ -Courts be low. Indeed, the decision’ below has ‘the effect of rendering Section 10 of the Act a virtual. nullity, since it would bé ‘dificult - to imagine what structures along a navigable waterway would not be considered ‘“dikes’’. Certainly, breakwaters, bulkheads, and jetties, also commonly used | methods to retain fill and also listed in-Section 10, would be.. It makes no sense to prohibit in one section of an act of Congress what is, permitted By another. Wisconsin v. Ilinows, supra; 34-Op. A. G410, 416 (1925) ; Cf. United States v: Republic. Steel-Corp., supra, . ~ In construing a statute, every ‘effort. should tre made to. —eonstrue it-as-a_harmonious whole so_as to effectuate “the legislative purpose and not adopt strained constructions. Richards-v. United States, 369 U.S. 1,11 (1962) ; Mastro-: Plastics Co: v. Lahor, Board, 350-U. S. 270, ), 585 (1956). Words in a statute should’ be construed in the: context of their subject matter and not in their everyday sense if such _ appears from the statute. N L.RB. v. Coca-Cola Bottling Co., 350 U.S. 264 (1956) ; Boston Sand Co: v. U. 8., 278 U.S. 41, 48. (1928). | Judged. by these standards, hus interpretation. given the. , word dike by the. courts below is entirely untenable as a matter.of law. The ‘‘dike’’? mentioned in Section 9 of the Rivers and Harbors Act along with the words htidges, - é ; -~o . : ; . . ; . 7 * 4 4% - > P . . ; a : ; Maat ° 4 ~ , dams-and causeways must be viewed in conjunction with these words. All of these are significant structures, span- ning the length of a waterway and controlling the flow of water. The so-called ‘dike’®: involved in the construction of the Hudson River Ixpressway neither spans the river nor controls its flow. Rathe ‘r, the ‘‘diké’’ is akin to the wharfs, piers, dolpliins, breakwaters, bulkheads and jetties - mentioned in. Section 9 of the ‘Act, all less. significant engi- neering structures under which Congress indicated it, need not pass upon and instead = ee -to the Corps of Kngine OTs. ~The type of dike”? mentioned in the contested permit is not the type of engineering dike that Congress was con- ‘cerned with in See tion 9 of the Act.- At the trial, both the -Stateand Federal Govergment produéed three. highly quali- fied engineers who testified that the proposed fill project did not involve-a di ke in the sense that the term is used by laymen and: engineer s. This testimony merely confirmed that as a matter ‘of law, there is no ‘dike’? involved within -_the menning of Section 9 Furthermore, the proposed construction is not a dike “in the common use of the word. The dictionary: tells us — that a-dike is “a bank, usually of earth constructed to eon- _trol or confine water’, Webster, Third New International Diclronary (1966 aimabridged) p. 632. Even prior to the” 1899) Act sa “‘dike’? was considered by the Attorney Gen- eral of “the U iy) Sti ites as Webster ‘defines .it. 16 Op. > G. 479 (1880); 15 Op. A.-G. 526 (1880); 15 Op. A. G. AIS (187A). vei, a aS “An accepfable engineering definition of the word “dike®’ ; S s © is found in Chambers Technical Dictionary, 3rd Revised dition with Supple ‘ment, 1958, page 273: uN “wall or enbankment of -timber, stone, concrete, fascineés, or other material, built as a training works . for a‘river so as rigidly to confine the flow within © definite lintits over the length treated.’? - a (o 4 * . j a \ . é ' ae : { | we | . lloweve ry all ‘toetimony at thie trial was to the effect that ‘the ‘dike’? mentioned. in the permit” did npt fall within * these definitions but rather was a const ructijon. term whielr denoted a method utilized to retain thie fill‘and prevent it- from returning into the wate rway, ‘Other COnDNON con- struction methods @f- “fill retention _ ‘is testified to by the engineers, included bulkheads, pre-cast conerete bloc ks aid poured concrete walls, all) str uetunes admijtedly red within thé ambit of Seetion 40. >In Jits reasoning tliat **: dike if a dike’? the court distegarded oe testimony ae tested iix decision sole ely upon nicre labo Is, There is no question hu? that if other: methods of con- ( ‘ struction had been used to retain the fill, no hasis for the Claim that congressional approval is necesse ry would He. It is absélutely inconceivable that Congress would intend law to show such conce rH oter‘a land. reclamation proj- nis such as is involved herein’ so as to rEGUILE its Specihc ‘approval when a rock dike’? method of Constructiowt is - used to retain the fill area, and not have any such con- cern when other methods of cousty uction are emplone das retaining. structures The rationale of the decision Delow makes in@sc: pat le the: conclusion that had the State of New. Vork utilized | another method of fill. retention, other than the one labeled _ , ‘roek dike, the court would not have found the existence of a ike?" Within the weaning of See tion 401, The Court’s reliance on the dabel rather than on the function of the structure to be built. is fatal to its decision. | - ‘ The. unteneble interpretation given to the word ‘dike’ “DY the courts below, which “TeGul res ¢ consent of Congress in every case where the laid fill “retention method i& labeled a ‘dike’? defeats rather than, serves, fhe ‘congressional purpose of having these iiatters passed upon by the Corps of Engineers, By ineluding any ‘type of retaining striue- ‘tures within Section 9 of. tlie statute. the courts Trelow have contravened the intent of Congress and have :sub- » > say «4 ro a ne ee stintHally nullified Section 10. Furthermore, the decisions helow have prevented the start of construction on this urge nithy necded roadway, + 2. The mere s oualdbilng that the Hudson River Ex- pressway may involve construction of a cause- way within the meaning of Section 9 of the Rivers and Harbors Act of 1899: did not give the Courts below authority to enjoin the issuance of a permit under Section. 10 of that Act.: - The Courts Claw found that a small portion of the pro- posed fos, frossway, not included within the pemmt area and onistde the fill aren described therein, would require a causeway “within the’ meaning of Section 9 of the - Act. Phe court heRl that since such Causeway would be part of the oe the Corps of Engineers should have sought the approval of the Secretary of Transportation of the United States and Congress before issuing the, permit. This approach is without warrant, unprecedented and . would create havoe, The major error in the Court’s. finding is that no such ‘eatisewey is encompassed within the scope of the permit application. The permit authorizes the State of New York to dredve and place fill ina portion of the Hudson River. No causeway is contained within the limits of the fill proj- ect. Although the District Court admitted that ‘this causeway. is not per se part of the fill project. which the corps of engincers’” pernut authorized’?, the Court went on to state that ‘‘thetcorps still had. the obligation to consider it and recognize its reality before issuing the permit’’. Such an approach is totally unw arranted., It is basic that a Court should consider suey the actual . ease or controversy before it, and should not pass on hypo- thetical situations nor give advisory opinions. Aetna Life Ins. Co. v: Hayworth, 300 U. S. 207. (1937) ; Muskrat v. United: States, 219 U. S.. 346 (1911) ; ‘Golden Vv. Zwickler, 394 U. S. 103 (1969). 13 The. sole issue bor the Court’s below to dete ‘ymine was whether there was a‘causeway encompassed within the area-of the fill project. If no such causeway was. con-: tained within sugh area, that Court was without jurisdic- ‘tion to consider and pass upon other possible areas of con- Struction.. Tf and when the New York State Department of Transportation does determine to build a causecivay south of the southerumost point of the fill project it would then have lo seck permission from Congress and the Secretary _ of Transportation pursuant to Section 9 of the: Rivers and / Harbors Act, 33 U.S.C. § 401 and the Department of Trans: portion slet, 49 US.C. $1055 Ce), | This lack of any -jurisdictional basis is emphasized by Unimpeached testimony cli¢ited at the trial that the State of New York had not in fact vet made a final decision as to’ what type of structure would be constructed south of the permit area. 3 — The Rivers and Harbors Act of 1899 does not require that a Section 10 permit be held up. whenever a Seetion 9 permit might also be required for some possible future por- a tion of an applicant? s proposed project: To- order the 7 Corps of Engineers to consider, in granting a Section 10 permit, a non-existent causeway and to order the State of New York to apply for permission to construct such cause- wav at the present ‘time when it is not known whether a causeway will ever be authorized, was unwarranted. 3. The determination of the Courts below that the plaintiffs below, lacking a legally protected in an _ terest, lacking any injury and lacking a specific | statute on which to bring suit, have standing to challenge the actions taken by the State: and Federal officials was an unwarranted application: of recent decisions of this Court. Reeent decisions of this Court regarding the issue of standing, in the eases of Flast’ v. Cohen, 392 U.S. 83 (1968); Data Processing Service v. Camp; 397 U.S. 150 © (1970) and Barlow x. Collins, 897 tC S. 159 (1970), have ap-. 16 parently ereated the imoression that standing is no longer an issue in any matter involving review of the actions of: State dau Federal officials. It is submitted that none of. the aforementioned decisions, nor any other decisions of this Court have ever gone so far as to allow any individual — or organization whatsoever to bring suit to protest any. covernmental action or. proposed action, Standing: still remains a valid conéept in our judicial system. A In ordty for a litigant.to have standing to challenge the action of State or Federal officials in’ Federal Court, this Court has always required petitioners fo show that the challenged action has (1) caused injury to thé plaintiff, “economie or otherwise and (2) that the interest sought to Letca by the complainant ts arguably within. the zone of interests to he protected or regulated by. the stat- ute or constitutional guarantee in question. - Data Process- ing Service vy Camp, supraz Turning first to the question of injury, it is extremely, doubtful that plaintiffs be.ow have the personal stake and interest that impart the ad- VeOrsencess recnired hy Article TLE of the ¢ ‘onstitution. yee prot The plaintiffs below consisted of an Ad How commnitiee formed to lobby against the. [ludson River Expressway, a California corperation which agreed to lénd its name and its, prestige to the loca! citizens committee and a village alone the shore of the Hudsen River. Unedntroverted testimony at the trial indicated that.the Citizens Commit- tee owned no property in the proposed path of the Ex- pressway and that no member owned any home or prop- erty that would be condemned or destroyed and ithe Court helow so found. ‘As regards the Sierra Club, ‘no proof was offered that any member owned or resided in any property in the proposed path of the Expressway, nor was it shown that the Sierra Club was active in‘or engaged | in any environmental acivities in the Hudson River Valley. Sincé the cub owned no wildlife sanctuaries, no nature trailways nor other property, clearly there is no injury which the Sierra Club could elaim. | Finally, the Village of Tarrytown could not point to any injury as a-result of the construction of the Expressway. 17 The sole proof offered for standing was the loss of tax _assessments on several private properties which would be taken by construction of the Expressway, The Court below erred in converting this loss of assessments into a loss of tax revenues in spite of the fact that uncontro- verted proof indicated that from tke moment the construe- tion of an expressway is announced, the adjacent proper- ties increase in walue to such an extent that they mere than offset the loss ‘of tax revenues and would actually create au economic gainsfor the’ Village of Tarrytown. Moreover, the village is a: subdivi ison of-the State and: as such has ho jegal standing to assail the validity of ‘the state action. . Bloch River Regulating District vy. Adiron- dack League ( ‘lub, 307 Ni Y. 475 (193: D), appeal dismissed, B01 U.S. 922 (1956); County of Albany v. Looker, 204 i Se 9 (1912). It is wholly. anomalous to permit a village mi challenge in the federal court the state action, ‘Turning to the other requirement set torth by this Court in Date Processing Service v. Camp, supra, it is clear that none of the plaintiffs below were within the zone of interests protected or regulated by a statute or constitu- tional guarantee. There is no constitutional provision such as the First Amendment which was available in Plast vy. Cohen, supra. Nor is there a specilie statutory provision such as Bank Service Corporation Act of 1962 whieh was utilized in Data Proce SSUNG Service Vv. Camp, supra, nor the Food and. Agriculture Act of 1965.whielr was utilized in Barlow y. Collins. ¥ urthermore, in Scenic udson Pres- ervation Conference ~. Federal Power Commission, 304 F. 2d 603 (2d Cir. 1968), which was cifed with approval hy this Court in Data Processing Service v. Camp, supra, plaintiffs there relied upon the Federal Power Act so as te give them a legal protected interest. Here, absent-such a statute creating any protectable interest on hehalf of apy of the plaintiffs below, the requisites: for standine have not been satisfied. | . Furthermore, ‘plaintiffs helow have failed to show. that they come within the rationale of the Scenie Iivleon ease - 18 as as groups ‘who by. their a¢tivities and conduet shave ex- hibited’) a special interest’? in ‘aesthetic, conservational, and reercational values’. No evidence was produced at trial that the Ad Hoe -Citizens Committee ever engaged in any aésthetic, conservation or recreational activities other than opposing the expressway. W hile we have nod quarrel with the good faith of the- Sierra aoe Tntervenor-Appellaut. + 2a. . ; Appendix “A”. * Cirizens ComMirree ror THE Hepson Vaiiey, Tire Srerra _ CLUB AND THLE VaLLace or TArryrowx, New York, Plaintiffs-A ppellauts, —against— — J. Bercu McMorray, Individually and as Commissioner of the Department ot Traifsportation of the State of New York, _ ; ; Dejendant-Appellee, + aii Before: : : ; = Tae, 3 Moore and Kavemax, Crrewt Judges: Ryan District Judge, * + Defendints appeal from-an order of the District Court Tor the Southern District of New York, Thomas I’. Murphy, Jedac, permanently enjoiniue the United States Army Corps of Engineers from issuing a permit to the State of New York to dredee and fill in the Hudson River for con-. struction of a proposed lxpressway without the prior approval of the Secretary of Transportation and in the absence of the consent of Congress, and further enjoining the New York Departinent of? Transportation from) pro- cooding with construction of the Expressway, without such approval and consent. The Plaintiffs Appeal from that portion of the: District Court’s order which dismissed) their claims against J. ~~ ch MeMorran, Commissioner of the Department of Ptansportation of the State, of New York, based on alleged nncons - ... river, or other water of the United States’... except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be ‘lawful to’ excavate or fill [in a navigable waterway of the United States] .-. . unless the work has been recommended by the Chief of Rnginee ‘rs and - authorized by the Secretar iry of the Army prior to beginning the same. . Approval a the secretary of Transportation ” is required * where construction of a bridge. or causeway is contemplated by virtue of the Department of Transportation Act, 49 U.S.C. § 1055(g), (1966), which transferred jurisdiction over bridges and causeways from the Secretary. of the Army ‘to the Secretiry of Transportation. See Judge Murphy’s discussion of the statutory interrelationships in the opinion below, 302 F. Supp at 1087. « . od 6a — / . be 9? : Appepdiv "A’7’, > The plaintiffs also appeal from a portion of the district court’s order which dismissed their claims against Me- Morran ax a primary defendant. “These claims challenged the constitutionality of the Expressway: Law,? which au- thorized MeMorran as Comimisisoner of ‘Transportation to “fix the exact route of the roadway and oVersee its construe: tion, and of section 30 of New York Highway Law, whieh prescribes the condemnation procedures in connéction with highway construction. They also claimed that a lump sum appropriation by the New York legislature \for general chighway. construction was an lnpermissible delegation of the spending authority. Their final claim was an equitable > action’ act vinst MeMor ran charging violation of \the Rivers and Harbors Act in seeking. to proceed with construetion > ofthe Hudson River dandfill without congressional consent and approval of the Seeretary of Transportation. The . . \ ‘district court dismissed these claims, but cranted injunctive relief against. MeMorran as intervenor-defendant. in the actions against the federal defendants: | linportant threshold questions on this appeak involve the jurisdiction of the district court over the subject matter of these actions, and the Standing of these plaintiffs to seek review of aweney action in federal court. We turn first to. spqnanieis ee : a . 5 Highw: av Law § 340-c, as amended | Bac Kine ‘y’s Consol. 1966), reads in pertinent part: Beginning at-a point Gn. interstate route 503 in the vicinity of Seacon Or Wicgopee, to bé determined by the superintendent of , * public works [now the Commissioner of Transportation}, thence in a generally southerly” direction ‘to the vicinity: of Ossining and thence continuing southerly, west.of. U.S: route nine, along or near the Hudson River to a connection or con- nections with existing highways, as determined by the [Commis-' “sioner of Transport ition] in the vicinity of the structure on the _ Governor Thomas I. Dewey Thruway known as - “The ¥ appan Zee Bridge.” _—: er: oe. ae Appendix A \ “The district court 2 ee d its jnris\ic tion on the Adiminis- trative Procedure. Aa, S.C. $$ TOK et. seq. (Supp. LV). “Section 702 provides as Messy ” ra rson suffering leval wrong because of agency action, or wlversely affected or aggrieved by agency action within the ineaning of a rele- vant statute, is entitled to judicial review thereof.’ Section 704 states that “lalgency action made reviewable by stat- ute and final agency*action for whigh there is -no mr T adequate Temedy ina court are sub: ct togudicial review. Section 706(2)(C) permits th C. reve wing court tosset aside agency: action found to exeeed pe. agency ’s statutory authority. io & : The statute, pursuant to wikike ‘h tlie, nee Chief of In- gineers issued the disputed permit contains no .provision. - for judicial review, nor does it include spe cific procedures for appeal of the Aviny* $ decision... Review of the action is: therefore defermined by+the provisions of the Adiministra- tive Procedure Act, applicable to all administrative actions or procecdings “except to the extent that: (1) statutes preclude judicial review; or (2) ageney action is comnitted ‘to agency discretion by 'law.’? 5 USC. § 701 (Supp. IV). Nothing in the Rivers and Harbors Act suggests that judicial review is preéluded, and it is clear from a reading of § 401 that approval of -projects involving the construe- tion of ‘dikes’? and ‘‘causeways,”’ rather than being ‘‘com- mitted to ageney diserefion by law,’? was. on the contrary, “expressly reserved do C ongress. ‘The federal defendants - contend that the landfill permit was governed py § 405, committing certain types of shoreline construction to the .Army’s diserction. . But whether or not. the Army could © exercise its authority undér § 403 without reference to § 401 | was a matter-of statutory construction ‘obviously subjected to full review in the district court by the Adininistiative & Sa “Appe ndix ‘ A”, Procedure Act, 5) U S.C. $706, The district veut properly relied on the ao ben of reviewability embodied in the Administrative Procedure Act where the ‘Te Was no evidence of a Congressional intent to prohibit review in the Rivers aid Harbors Aci. As the Supreme Court’ has twice heid ‘Sonly upon a showing of ‘clear and convincing evidénee’ of a-contrary legislative intent should the ceurts restrict ‘access to judicial review.’? Abbott Laboratories v. Gard-' ner, 3887 -.U. S. 136, A41 (1967); accord, Rusk v. Cort, 369 U.S. 367, 879-3880 (1962); Ale ‘tscha v. Driver, 41] F.2d 436 (2d Cir. 1969) ; Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966). 00 There can be no question at this late date that Congress intended by the Administrative Procedure Act to assure | comprehensive review of ‘* broad spectrum of administra- tive actions,” including those made reviewable by specific statutes without adequate review provisions as iyell as those for which no review is available under any other statute. Lbbolt Laboratoric sv. Gardner, supra at 140; sce S. Rep. No. 752, 79th Gong. Ist Sess., 26 (1945); H.R. Rep. No. 1980, 79th Cong. 2d Sess., 41 (1946). Since the Army’s issuance of this permit was final ageney’ action for which there‘is no other adequate remedy ina court, and review fs not clearly and ¢onvineingly precluded by the Rivers and Harbors Act, the Administrative Procedure Act must be read ‘to confer equitable jurisdiction on the district court to protect by injunctive relief such rights as the plaintiff “nay have standing to assert. Kletscha v. Driver, 411 F.2d 436, 445 (2d Cir. 1969). In our discussion of standing, infra, we conclude that these plaintiffs ae “agerioved by agency action within the meaning of a relevant statute’’ therefore entitled to- review. The district. court has the power under § 706 to set aside agency. aetion in excess of | statutory authority, and- we agree with the district court that issuance of the pernut here exceeded the Army’ S al- and are | ee ee - ‘Appendix “A”. thority. Under these circumstances, if the: Administrative Procedure Act could not itself serve as a basis for juris- diction, the important goal of subjecting final agency action to judicial scrutiny would be frustrated. We therefore con- elude that the district court properiy assumed jurisdiction. II. Reference was likewise made to the Administrative Pro- cedure Act to determine the plaintiffs’ standing to obtain review. Their right to review was based on the Act’s pro- vision that ‘‘fa]. person suffering degal wrong or ‘aggrieved by agency action within the meaning of a nee vant statute, is entitled to: judicial review thereof? 5 US. (. § 702. Two of the plaintiffs (the Citizens Comumit- tee and the Sierra Club) made no claim that the proposed Expressway or the issuance. of the dredge and fill permit threatened any direct personal .or economic harm to thems Instead they asserted the interest of. the public in’ the natural resources, scenic beauty and historical value of the area immediately threatened with drasti# alteration, claiming that they were “aggrieved” when the Corps acted adversely to the public interest. They are, as the federal: ‘defendants observe, serving as ‘‘private Attorney Gen- erals’’ to protect the public interest. © See Associated In- dustries of tlie State of New York vy. Ickes, 134° F.2d 694. 704 (2d Cir.'1943). Allowance of standing to private ‘attorneys general i ‘publie actions’” challenging administrative ac tivity is na no means a new or unusual concept. See Associated Indus- tries v. Ickes, supra; Office of Commimication of United >See generally L, Jaffe, Judicial Control of Administrative “Ac- tion 459-500 (1965) ; K. Davis Administrative Law § 22.05 (1958). ’ 10a — al ppenil A. Church of Christ v. F:C.C., 359 F.2d 994 (D.C. Cir, 1966) 3 Reade v. Ewing, 205 F.2d 630 (2d Cir. 1953) ; ef. Seripps- Howard Radio, Inc. v. F.C.C., 316 U.S. 4 (1942); F.C. C. Vv. Sanders Brothers Radio Station, 309 U.S. 470 (1940). It is significant that standing in such tases has derived from judicial interpretation of the statutory term “aggrieved” ‘as deserjptive of persons entitled to review. Thus under the Federal Communications Act, where ageney action as- sertédly contravened the public interest, private litigants were held to be **persons aggrieved’? with standing ‘only as representatives of the publie interest.’? Scripps-Howard Radio, Ine. v. F.C.C., supra at 14; L. Jaffe, Judicial Con- trol of Administrative Action, 499 (1965). The Supreme Court has observed that the law of stand- ing is a *complicated specialty of federal jurisdiction, the solution of whose problems is in-any event more or less determined by the specific cirewmstances of. individual situ- ations, ...7? U.S. ex rel. Chapman vy. #.D.C., 845 US. 153, 196 (1953). Judge (now Chief Justice) Burger, in his Ofiee of Communication of United “Church of Christ yo FCC. supra, opinion characterized the concept of standing as **a practical and functional one designed to insure that only those with a genuine and legitimate interest can partici- pate in a proceeding... .°" 7d. at 1002.5 But the Supreme Court has recently cautioned that ‘{t}here must. in addi- tion [to adversary interest] be some connection between : 4 In Chure h of Chaidl, a citizens, group pressing an organized protest against renewal by the FCC of a radio broadcasters license, alleging that the ‘broadcaster had ignored the listening needs of nes arly half the listening audience, was held to have st: inding before the Commission as a group represents itive of broadcast “consumers.” ‘Judge Burger treated the question of stariding before the Commis- - sion as equivalent to standing for judicial review, °359 F.2d at 1000 n. 8, and.wied as authority for his grant of standing .to members of the general public, inter alia, Scenic Hudson Preservation Conf.’v. FLP.C., 354 F.2d 608 (2d Cir. 1965). + lla Appendix ‘*.A”. the official action challenged and some legally protected interest of the party challenging the action.’’? Jenkins v. McKeithen, 395 US. 411, 423 (1969)... With these princi- - ples in mind, we must examine the nature of the interest these plaintiffs are seeking to protect, and the appropri- ateness of their claim to represent the public i in de iianding “that protection. We have already described the situation confronting the _plaintiffs—the prospect of massive alteration of the Hud- son-River shoreline and of the physical environment for some ten miles along the river’s bank. -The Citizens Com- mittee for the Hudson Valley (Citizens Committee) is an. unincorporated association of citizens who reside near the proposed Expressway. The Sierra Club is a national con-. servation organization with substantial membership also in the area of the Expressway, and a history of involye- ment in the preservation of national scenic and recrea-' tional resources. ‘farrytown. is an incorporated village, and the planned Expressway would pass through its boundaries at the southern end of the roadway. All plain- tiffs made a vigorous effort to present their views to the New York Department of Transportation and to the fed- eral officials responsible for granting the disputed perinit. They have evidenced the seriousness of their concern with local natural resourees by organizing for the purpose of cogently expressing it, and the intensity of their concern is apparent from the considerable expense and effort they have undertaken in order to protect the public ‘interest which -they believe is threatened hy official action of the federal and state governments. ,In short, they have proved _the genuineness. of their concern by demonstrating that they are ‘‘willing.to shonlder the burdensome and éostly processes of infervention” in an administrative proceeding. United Church of Christ, supra at 1005. They have: ‘thy . f 12a. “Appendix 6A”. hs activities and conduct... exhibited a special interest n’’ the preservation of the sate al resources of the Hud-- son Valley. Scenic Hudson Preservation Conf,, 354 F.2d 608, 616 (2a Cir, 1965). Tt remains for us to examine wAay ' whether dei re is legal justification for their intervention— whether there is a ‘legally protected interest’? at stake — which they can assert because of their special concern. Imseowic Hudson, supra, we set aside an.order of the. Federal Power Commission granting a license to Consol- idated Ndison Company of New York to construct a hydro- electric project on the west side of the Hudson River af Storm King Mountain. Finding that the Federal Power. Act required the Commission to consider as a factor in . granting such-a Leense ‘recreational purposes’? of water- way development, we held that persons asserting an in- terest in that faétor were ‘aggrieved’? withjn the-meaning of that statuté’s review provisions when the Commission decided adversely with respect to their claims.’ The ex- pression. hy Congress in the.Federal Power Act of a con- cern for the enviréninental effect which the agency’s action - could be expected to exert was interpreted to create express 5 Fy “Ae ral P ower Act § 10(a), 10 U.S.C. § 803(a) reads in part: All licenses issued... shall be on the following’ conditions : (a) That the project adopted . .. shall be such as in the judgment of the Commissioner will be best adopted to a comprehensive - plan for improving or developing a waterway or waterways for ‘the use or benefit of interestate or foreign commerce,*for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes ; © The pertinent review provisions are contained in section 313(b) of-the Federal Power Act, 16 U.S.C. § 8251 (b) : (b) Any party to a ‘proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may ob- tain a review of such order in the United States Court of Ap- peals for any circuit wherein the license or public utility to which, the order relates i is located . . and instruets all agencies - to consider those resources: in planning or approving ae- tivities affecting the area. One of the regulations’ under which the Corps of Eneinecrs issued the present permit provides the following: : ... the decision as to whether a permit will be issued niust rest on an evaluation of all relevant factors, in- cluding the effect of the propésed work on navigation, fishy and wildlife, conservation, pollution, aesthetics, . ecology, and the general ‘public interest. — 33 CFR 209.120(d).° (footnote ¢ continue ed from previous page) § 165307) (Supp. IV). The merits of the plaintiffs’ claims are en- twined with their standing to maintain them.” One of their conten- tions was that a portion of the proposed expressway constituted a canseway and, therefore, that the Corps erred in failing to secure the consent of the Secretary of “Transportation pursuant to the De- parti ent. of Transportation Act, Since we are in agreement with the district court that the plans for the expressway did envision the construction of a causeway, sce infra, the Department of Trans- portation Act is.a “relevant” statute; and the eoneern it evidences for preservation of the environment serves to reinforce our decision that the plaintiffs have standing to maintain this action, ©... , “See also Fish and Wildlife Coordination Act of 1934,- as amended, 16 U.S.C.°§$ 662(a); Fish and Wildlife Act of 1956, as. amended, 16 U.S.C. § 742a et seq.; Memorandum of Understanding between the Secretary of the Interior and the Secretary of the Army, 33 C FR 290.120(4)(11). Claims relevant to most of these factors were advanced by the plaintiffs throtghout the proceedings in connection with their contention that issuance’ of the. permit was “arbitrary and capriéiots.” The district court did not reach the “arbitrary and capricious” claim in deciding for the plaintiffs, and we need not consider it here. ante 15a Appendix a ues Thus administrative as well as congressional concern for natural resources in the present exercise of federal au- tority is evident. We hold, therafore; that: the public in- terest in environmental. resources—an interest created by statutes affecting the issuance of this permit—is a Jegally protected interest affording these plaintiffs, as responsible representatives of: the public, standing to obtain judicial review of agency action alleged to be in contravention of that public interest. Scenic Hudson. Preservation Conf. v. F.C. supra; State of. hviebiee cate Dept. of Game v. F.P.Ci, 207 F.2d 39k (9th Cir, 1953) ; ‘Road Review L cague: v. Boyd, supra. tee The federal ‘defendants challenge the standing of the ‘Village of Tarrytown on a somewhat different ground. Conceding that the Villagé snay have standing to chal- lenge construction of thé: Expressway itself,’ they contend that. issuanée of the fill permit could not have a direct effect on the Village and therefore no standing extsts to challenge the permit. This argument ignores the-realities confronting the Village of Tarrytown. It is true that-the Corps of Engineers cannot affirmatively control the entire Expressway project, as the Federal Power Commission controlled the project at issue in Scenic Hudson, and that all that is required of the Corps is ‘‘acquiescence’? in parts of the State’s proposed construction. Nevertheless: fed- eral atquiescenece in the project would: spell immediate jeopardy to substantial interests of the Village, because *” The district court found that the Village of Tarrytown would suffer “loss of tax revenues and mterference’ with the Urban Kg- néwal project already in progress in the Village.” 302 F.Supp. ‘at 1092. See Scenic Hudson Preservation Conf. v. F.P.C..°354 F.2d at 616. 16a * oe Appendix “A”. once the pérmnit issues, the State of New York ean com- mence the costly dredging and filling operation and pro- cood inexorably on the course of highway construction to which the Village objects. The Village would be hard put at some later date to overbalance the equities in favor of the State such a large commitment ef public funds would engender and its legitimate concern could be irretrievably subverted even though the permit was issued unlawfully. Although the fill itself will not have a significant direct effect on the special interests demonstrated by Tarrytown, the effect of the permit will have a substantial impact. Without the permit, New York cannot.begin construction of the Expressway along the presently planned route. : With it, condemnation proceedings and, construction can commence all-along that route. We think the concept of standing is sufficiently ‘practical and functional’’ to per- mit Tarrytown to take advantage of federal remedies to ‘avoid the substantial impact of the consequences flowing from issuance by federal agencies of the disputed permnt. i, oe Cee We turn now briefly to the merits of the controversy. After 29 days of trial, during which numerous exhibits were offered (including a model of the proposed Express- way), experts were examined, naps, charts and technical dictionaries, were consulted and the facts were exhaus- tively presented, the district court -coneluded that. con- struction of both a “‘dike’’ and a ‘*causeway’’ were con- templated by the State. ‘The court was-called upon to construe the\meaning of those terms as they were used in § 401 of the Rivers and Harbors: Act of 1899, and as they applied in fact to the Expressway plans, before it. Having carefully réviewed the pertinent evidence and con- ‘17a . m, _ Appendix “A”. sidered the governing rules of statutory construction, we adopt, the conclusion of the district court that the word , . “dike” used by the defendants in their permit has the saine meaning there as in § 401 of the Act, and that con- struction of a'dike is forbidden :by that Rector without the consent of Congress. We ‘likewise agreed that the Corps.of Engineers coer not have ignored the prospect that a ‘‘causeway’’ within the meaning of $401 was to be a part of the project it .Was approving, and that approval of-the Secretary of Transportation would later be required. Any further-fed- eral role in consideration of this massive project. would be effectively foreclosed by the Army’s acquiescence in a 9.5 million cubic-vard landfill, to be undertaken at great expense to the New York taxpayers. Indeed Congress, - which also must approve:construction ‘of a causeway over ; - navigable waters, would, in practical efféct, be precluded from reversing such a course of action already begun pur- suant to the present permit issued by the Army. °* r - oN The district court héld that'the plaintiffs’ constitutional claims were, without merit, and.we agree. As we under- stand their-argument, three separate delegations of power . to McMorran combine to constitute in their view, an ab- dication of legislative responsibility i in construction- of this Expressway. The Expressway law itself is an cight-line statute" describing. generally the terminal points and route of the highway and. prescribing that, -between Os- sining. and the Tappan Zee Bridge, the roadbed is to pro- eced west of Highway 9 and ‘‘along or near’’ the Ifudson River. Second, section 30 of New York’s Highway Law ‘ a . ae . 1 Note 2, supra. oan Ya ; 18a Appendia ** | ‘ allows MeMorran to conderin property needed for high- way construction, and sets forth the procedures to he fol- lowed. tt condemnation. These proc cedures are themselv es challenged as violative of due process. Third, the jegis- lature’s lump sum appropriation for highway construction to the Department of Transportation permits MeMorran Souiee latitude in-deciding how the. highway money is to be spent. The.plaintiffs argue that, with all the dis- eretion over condemnation of property, expenditure: of funds and fixing of routes afforded to MeMorran by.this combination. of ‘legislation, the ‘taggregation:of power’? , vested in him violates: the citizens’ right to due process. On this appeal, the plaintiffs have not developed the facts or the law sufficiently to be persuasive. The Express- war statute certainly offers very little guidance for major decision which the Department of Transportation is au- thorized to “inake, MeMorran cites a bevy of regulations, as does the district court, as restrictions on this power, ~ put few of-them appear to be relevant to these major deci- sions. Thus the statute itself sets: the bounds of MeMor- ran’s discretion, which is. very broad. However, nullifica- - tion of statutory delegations of discretionary authority in Inajer -publie works projects on grounds of due’ process is. quite rare,-and the plaintiffs offer virtually no authority . for judicial intervention along the lines they propose. | Indeed authorities closest in point. are to the contrary. See ‘Ahoyian v, Massachusetts Turnpike Authority, 211 UF. Supp. 668, 669 (D. Mass.). aff’d, 371 USS. 106 (1962) ; “eps Hollow Valley Commission v. MeMorran, 20 N. Y. 24 190, 195-97 (1967): ef. Sencca Nation of Indians. v: ‘United States, 338 F.2d 55 (2d Cir. 1964).° We agree with the district court tliat these claims must be —- Affir med, ; . —— ee eo 19a Judgment of Affirmanse. UN ITED STAT ES COU CRYOF' A APPEALS ke ; h nae For THE a eek ce “SRCOND Cincurr Ata Stated Term of the U nited, States Court of Appeals, in and for the Second Circuit, lield at the United States Courthouse in the City of New. York, on the sixteenth day of April one thousand nine undred and seventy, — = Present: How. Pee 2: “Moore, . Hon. Irvine R. Kaurman, Circuit Judges. Hon. Sytvester J. Ryan, District Judge. ? + bs Citizens CoMMITTEE FoR THE Hupson Vauuey, THE Srerra CLuB AND ‘'HE VILLAGE OF Tarrytown, New Yor, - Plaintiffs-Appellees, againsts . JouHN VOLPE, Individually and as Secretary of . Transportation of the United States, et al., : | ; “Defendants-Appellants, * ~ ns J. Burov McMorr. AN, Individnally ad 3 as s Cotnmissioner of \.. ‘the Dept. of Transportation of the State of N. Y., Inter venor -Appellant:. Crrmeys Comrrrer FOR THE Hupson VALLEY, Tur SIERRA’ CLUB AND THE VILLAGE oF Tarrytown, N. Y., | Plaintitfe- Appellants, rae against ; - J. Burcu McMorray; Individually and as Commissioner of the ii of ne ta ase of the State of N. Y., “a — " Defendant- oo . 20a ty Judgment of Affirmance. ‘ - ° Appeal from the United States District Court for the Southern District of New York. ar This cause came on to be heard on the transcript of ree- . ord from the United States District Court for the Southern Distriet of , and was argued by counsel. ‘ pee I ON . CONSIDERATION. WHEREOF, it is now hereby ordered, - adjudged, and decreed that the order of said District Court be and it hereby.is affirmed. A. DanteL Fvsano, - : ) Peete cs | Clerk. JUDGMENT ENTERED 6/3/70. «5 ae © Joun Livrycston, ; | -Clerk, % APPENDIX “B” Decision of District Court, Musphy, Eads, . dated July i1,. 1969. Mecreiuy, DJ.: , - These four actions, consolidated for trial, challe nee the construction of the proposed Hudsou River Joxpressway on a variety of grounds. : The Citizens Comnnittee for the Hudson River Valle v an wifincorporated ‘association of citizens who reside a the area of the proposed Expressway The Sierra Club is ft non- profit’ conservationist corporation orgsmized in Call- fornia with various chapters throughout the United States. Tarrytown is an Mreorporatyad Village of New York State, and one of the cohuunities through which the Joxpress- way wilh Pass. ° The federal defendants are public Officials charged with certain’ statutory duties related to Gie issues involved and the defendant, J. Burch MeMorran, is the C omlissioner of ‘the Department of Transportation of. the State of New York, the builder of the proposede Sine te The bxpressway, as proposed by the New York State Department of Transportation, is planned to be a six lane Sarterial highway which will accounnodate both passenger and comme reli ul traflice. As conceived it will extend approxi- diately nine ihifes along the ¢ aust shore of the Hudson River from the,’Fappan Zee Bridge at Tar rvtown north to Croton- ville, New York, «Approximately 2.000 feet of the read will rest on 9,900,000 cubie yards of dill which will extend atits . widest point 1500 feet into the river. No part of the project Will involve the expe snditure of federal funds, On February 21, 1968, the State Department of. Trins- portation, pursuant to 33 U.S.C. $408 (Rivers and Harbors Act of 1899), applied to the Corps-of? Engineers for a permit authorizing the fill operation-which would. take approxiinately two years to complete. When the permit was authorized by the Secretary of the Army and issued, by the Corps on January 27, 1969, the plaintiffs sought. oo). — at Decision of District Court, Murphy. D.dI., dated July 11, 1969. , ; a preliminary injunction restraining ms delivery. This re- lief was denied, Citizens Committee v. Volpe, 297 F.Supp. S04 (S.DINLY. 1969). and the Court of Appeals affirmed. —— Ko Pd —— (2d Cir. 1969)" but ordered an immediate trial on the merits. The plaintiff’s major claim is thet sinee the Expresew: ay project involves dikes, causeways and bridges to We Inuilt over or in a navigable waterway of the United States. the Corps exceeded its statutory authority in issuing the perinit: without the prior approval of Congr ss and or the federal Department of Transportation, as required hy 33 U.S.C. 6 401 of the same Riversaqnd Harbors Net of 1899. Seetion 403. under which the Corps issued the permit provides + , “The creation of any obstruction not aflirmatively authorized by Congress, te the navigable capacity of. “any of the waters of the United States is prohibited ee ain and. it shall not be lawrul to exeavate or fill [ina navigable waterway of the United States]... unless the work has been recommended by the Chief of ngi- neers and authorized by the Secretary of the Army prior to beginning the same.” a > USCS 405 CLS99). Section 401, clad by the plaintiffs to. he applicable, provides : : “Tt shall not he lawful to construct Or commence the construction of any bridge, dam, dike, or causeway, . ee ee ‘In Citizens Committee v. Volpe, 297 F. Supp. 809, which granted New York State’s motion to dismiss the actions against it on.the ground of sovereign immunity, the plaintiffs’ claims agamst MeMorran were restricted to whether’ “|sJection 340¢ of the New York Highway Law is unconstitutiqnal in that it vielutes the Four- teenth Amendment and lis the construction of] the Expressway . . . a violation of their Fifth Amendment rights.”.297 F. Supp. at 814. Penn of District € ‘ourt, Murphy, wal. dated July 11, 1969.- over or in any port, roadstead, haven, harbor, canal, navigable river... of the “United States until the consent of Congress to the building of such structures shall have been obtained, and until the plats for ‘the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the - Army. .. .” 33. U.S.C. § 41 sass! ‘The*necded approval of the Secretary of Transportation of the United States becomes a factor in the’ case as a result of. the evolution of section 401. By two subscéquent statutes ‘bridges’? were removed froni the specific conscut. of Congress requirement. In- 1946 Congress enacted the General Bridge Act. 338 U.S.C. $525 et seq. Section 025 -of this Act grants the consent of Congress for the con- struction of any bridge éver nay igable waters if the bridge is approved hy the Chief of Engineers and, the Secretary of the Army. However, Congress still reserved ‘its juris- diction over dikes and causeways referred to in’ seetion 401 of Tithe 33. In L966 Congress enacted *the. De spartinent of Transportation Act, 49 U.S.C. 9 1651 et seq. Section 1655 of that: Act-transferred certain powers and. duties of other federal depaitments to the Secretary of Trans- portation. Subsection (g¢) of that section transferred juris- diction over bridges and causeways in navigable waters ° of the United States. from. the Secretary of the Army to the Secretary of: Trans portation. Consequently, the construction ofa bridge over or in “navigable waterways nox’ requires approval of the Corps— of Engineers acting under the Secretary of the Army, and the Secretary. of Transportation; the-construction of a dike requires the consent of Congress and the Corps of . Engineers when authorized by the Secretary of the Army;- the construction of a causeway requires the consent’ of : ph Me ; Decision of District Cowt, Murphy, Pay. Shek OG dated July 11, 1962. Congress and che approval of the Secretary of Transpor- tation, : | Since the Corps of Jengineers as “authorized by the ee retary of the Army issued the permit without the consent of Congress or the Secretary of Transportation, it ex- cecded its statutory authority if there is a bridge, dike, or causeway involved in’ the permitted project. We come, therefore, to whatcis the most crucial issue in the case, It-is undisputed that the Hudson River is a navigable waterway of the United States, and that in both the permit issued by the Corps, and the New York State plans’ ac- companyving the permit there are numerous references to “dikes.’? “Page 1 otf the Permit states: “vot are hereby authorized by the Secretary of the Army to dredge and place fill protected by stone slope protection and to con- xtruct piers and bulkheads with floats and mooring piles: the dredged material to be suitably retained by dikes to prevent its return into the waterway. . > (Miuphasis added.) In the State plans or drawings attached to the —perinit there are four references to stone and or rock dikes. In-the plans prepared by the State im connection with the securing of bids, three types of dikes are speetfically ustrated and deseribed. The main type, the rock dike, will run along the entire length of the western side of the fill-in order to prevent the fill from returning to the river... : The defendants, wares accusing the plaintiffs of argning sem inties, yostulate that what is called a dike (by the various engineers who pre pared: the plans, for the State Department of Transportation, and the. Corps of Engi-, Yeers) ix not really 2 dike sinee a real dike has a differe nt “purpose from their dikes. Phey also arene, assuming dikes are involved, that section 401 1s still not applicable, since their dikes would not substantially affect navigation. The 6 25a. Decision of District Court, Murphy, DJ., dated July 11, 1969, 270 BK. dL 912 (2d Cir), cert. denied, 864. U.S. 884 (1960). “Phe court heldoin that. case that the suit, while termed one for judicial review, was in reality a contract action against the Enited States and properly belonged in the Court of Claims. Itiwont onto say that the Administrative Procedure Act docs. not extend the jurisdiction of the federal courts to cases not other- ~ Wise within their competence, Even though the coum stated 6 the Act dots not erant jurisdiction, it never had io each that dete rmination since there was really no. agency action to be reviewed. eS ses Since the presumption-in favor of jurisdiction has not heen rebutted by a clear and convincing presentation of an opposite legislative intent, we hold that this -court has the necessary jurisdiction to rule on the disprte un der the Administrative Procedure “Act. ~ This court also has jurisdiction. of the suit hroneht | hv the V Hage of Tarrytown under the federal questio n statute : > * National Maritime Union'v. NIAB, 267 F. Supp. 117, 119 at N. 8 (S.D.N.Y. 1967). SQ yircat. c ‘Dedsion of District Court, Murphy, ‘Did, ; dated July. 11, 1969. tas whieli provides: oO | Lege, pune “The district: courts shall have original jurisdiction of all civil ac tions, wherein the matter in 1 controversy exceeds the sump or valve of ¥10,000 ... and arises under the Constitution, laws,.or treaties of the United States.’? 28 U.S.C. § 133 (a) (1958). ; » The Village’s claini is that it will lo ¢ tax reyenties a by thé State condenmation of taxable fe tas in the aoe Village...” In Scente Hudsoi, Preservation ¢ Conf. v. EPC oot I. 2d GOS (2d Cir, 1905) 4 We also hold lint ‘al of the plaintiff's have standing necessary to maintain these!uctions. “Under Scenic Huds son, supra, there is little doubt that the Village of, Tarry- tovn has.the necessary standing. There the court held, ©The towns that are ‘co- petitioners with Scenie dudson have standing because the -transinission lines’... reduce \ tax eventos: collected from privately held: land, and sig-- nificantly interfere with long-range connmunity planning.”’ 354 IF. 2d at 616, ; This is pree isely what was prov ed by the Village in the instant case, namely, loss of tax revenues and interference with the Urban Renewal. project already in progress in the Village. The proof offered by the Village of. Tarrytown en * Since jurisdiction has been established under the Administrative Procedure Act.and the: Federal Question statute, we do not -deter- une if jttrisdiction exists under the Mandamus Act (28 U.S. §$ 1361). thet “ommerce and Anti-Trust Statute (28 U.S.C. § 1337); cee the Dect: ratory. Judgme ‘nt Act (28 U.S.C. sis outa ie — +A . 33a ° as . Decision of District Court, Murphy, D. J., ea dated July 11, 1969. that it ‘would lose over $10,000 in tax revenues contained some errors. in ‘computation. Nevertheless, this court is must consider loeal necds, parks, bastoric sites and natu tral re sources. , 270 I. Supp. at 660-61. The court stated that: ve . : s = . ee a ~ these provisions. were ‘Ssuflivient, under the yprinciples of Scenic Uudson. Yo manifest 2 congressional intent oe towns, local civie oremnizationss and conservation groups are to be eonsidered ‘agerieved? by ageney action ahich allewedty as disregarded their interests, TD sce no reason why the word ‘aggrieved? should have a different meaning in the .Administr ative Procedure Aet fromethe meaning eiven to it under, the: Io deral: es oWer, Aef.? soe i. Supp. at O61, ! The rule, there fone: ‘is that if the statutes. involved in the controve sy are ee Tawith the protection of nat- ural, hixtori¢, and scenic resources, then. & congréssional ‘intent exists to give standing to groups terested in these factors and gvho aliegé that, the se Faetors are not being properly considered by the aeroney Gene . © e e e % Viter the plaintiffs had rested, the State moved unsuccessfully » to. dismiss ‘since the plaintiffs . chad introduced not evidence -to show their interest in the naturgl; historie, and scenic resources of the area and hence had failed. to prove their standing. Turing the State’s case this-interest wis proved throws the testimony of menibers of the Citizens Committee and Sierra Club. We hase our decision that plaintiffs Citizens ennne ‘e and, Sierra Club have standing based on - the evidertee as a whole, incloding that introduced by the “deferdant” New York Sta tte. Bate sv. Miller, 133 12d 645 (2d (cir. s Cert pee denied,320 U.S. 210 (1943) ; 9 Wigmore, Qn Evidence § 2496 (3d,- d. 1940). = 0 j e r Fs + ; ° sai ng i ’ . up ane e Bek: * . . . i. * . a Fe rere yeh ‘ : "” Decision of District Court, Murphy, DiJ., - | dated July 11, 1969. In the instant | cise the ag tetas ot eau ane “Act mmar Hfests the same cCongressidial concer One of the eegulatioOns under which the Corps of engineers ‘issucd the pérmit, 33°C.ELR. ¢ § 209.850, calls for the consideration’ r the effects of the pve on fish, recreation, pollution, oe natural resources ‘as well as navigation? 1 The ‘refore, under. the euidelines of Scenic Hudson and Road Review both the Sic ra Club and th ‘Citizens Coin- Inittee Lave the requisite standing .to” Jnaintain these ae tions. ie The remaining claim of be pk: uintiffs is th: i MeMorran asa State official is, proceeding under an unconstitutional | statute, Le., d40¢e-of New York Highway. Las, in-viola—, tion of the Fifth/and Fourteenth Aniendmhent rights of the plaintiffs and, accordingly, should. be enjoined: . See note 1, supra. / 2 “Phe pkauntiffs’ brief characterizes therclaim as follows: Whether Article VIE (New York State Constitution) has. heen violated is perhaps not a question hefore this court. The extent of the power granted ‘to MeMprran hy the Ex- pressway Law, § § 30 of the High ray Law, andthe Leeislae ‘fure’s lump sum budge ts is of the essénee of the constitu. tional claim.”? Section 349e of New York Highway Law (\McKinney’s 1960), which authorizes construction of the! ‘Expressway provides: . Pees em, a8 ; My oo. “State expressway routes are-herehy set forth and generally described as follows. * a 5 ’ See notes 3 and 4 supra. Public Law 89-605, 80 Stat. 847° (19¢ ae sta s that the’ ] fidson River basin contains resources of “immense econonie, netur A, Scenic, ‘ Hitstoric, sand recreation value to’ all the citizens 6f the nited piatese. 3 nas es .* 24 ———— a ° Decision of District Court, Murphy, DJ, date d July 11, 1969. a bs inning o a point on interstate route 503 in the , vic ‘inity of Beacon or in the vieinity? of Wiccopee, > to be determined - by the «superintendent ‘of publie “ works, thence in a generally southerly direction to the vicinity of Ossining and thence continuing southerly, west of U. S. route nine, along or near the Hudson River to a connection or connections with existing . . e . Ps ° . . ° 7 . highways, as-determined by the superintendent of pub- -. lie works, in the vicinity of the structure on the Gov- ernor Thémas- i. Dewey Thruway known as “The Tappan Zee Bridge’.”’ » The plamtufs ‘¢ ‘laim this statute is an unconstitutional . delegation of législative pow er, to the Commission in, “that it prescribes no standards to be followed in de termining, inter alia, the exact route, width or nature of the Expregs- way. We disagree. To require a State legislature to pre- ecrihe, every detail ‘fa proposed State road, Would shortly .put an end to road cénstruction on a State level. In Ahoy- ian ve Massachusetts Turnpike Authority, 211 Fe Supp. “GES, G69 (1). Mass.), afd, 371 USS. 186 (1962), it was held that the delegatron of the extiet path of a highway was not - rr unlaylet.. The‘ ljegisiature cannot ‘constitutionally (be) required to appraise saree hand: the myriad situations to which it wishes a particular poliey to, bé applied and to formulate specifie rules for each situation. Necessity there- fore fixes a point beyond which it is unreasonable and im- practicable to compel (the Legislature) to prescribe de- tailed rules.??? City of. Utica v. Water Pollution Control Board: 5 N.Y. 2d 164, 169 (1959), citing American Poaver Co. v. SEE, 329 '°U.\ S: 90. éMorcover, the Commissioner of: ‘Transportation, when ° implementing section 340e of the Tighway Law, is bound “by the procedures and standards set forth. by the New York State’ Legislatire in section 240d of the Highway A i ge ola “Decision oy, District Court; Murphy, Dud, date d July 1t, 1969. ‘Law. This latte r section ‘provides for, inter alia, the mun- ber ‘and separation of lanes, access to” the expressways . and their maintenance. Sections 10 and. Al of the Highway Act mandate that the Comnnissioner make. -SUIVEYS, naps ae and plans in connection with the Construction of” roads. Before the Commissioner awards -any seam Aa Con- - twact, he must. follow the _procedurgs prescribed by the Legislature in stetion 38 of the Highway Law. Yn short, the Commissioner is not operating solely under section. d40c. Rather, he is bhoundby. the many regulatory. provis, sions oi Galaed in’ the entire Highway “Law of New York. We atso Jiold that failure to give prior hotice of the eX- “ercise of the power of eminent domain is not violative of due process, United States v; Southerly Portion of Bodie me - 114 I. Supp. 420, 430 (1e.D.N.C. 1953); U irity/l States . Winn, 83 I. Supp. 172, 174 (WLDS.C. 1949). Section $5 of Kew York's Hiahwey Law sets’ forth tlie conderima/’ tion prpery lures to be followed by the Commissioner. Con- demPation | mi Ips are filed in the Office of the County ¥ fork . of the county in- wlrich the prope rty is located ae in the” Department of State. U pon filing with the Couyty Clerk, title vests in the State.. Notice is then- personally served. on the’ former property owner who. may ten commence suit in the Court of Claims. Tf a former Mroperty owner remains on the land after the taking, the. Commissioner niust commence an eviction proceeding on-60 days notice. These procedures clearly meet the requirements of due process. . Bragg v. Weaver, 251 U.S. 57 (1919) 3 Fifth Aes” Coach Lines v. C ity of Ne uw V ork, a. Me Sa 342° (1962). - Although plaintiffs? « OMap saints agninst MeMorrace make no mention of the. ante vi Fre the New “York State: —* legislature has «provided for the Department of Trans: portation, there was received in evidence plaintiffs’ Ex- > . - . y ’ oa Decision oF py: strict Cc ort; Murphy, D. Fe dated July 11,:1969.- we od ° j a Anbit 91) whielr sets. forth the! appro; vriations for’ the Departme nt of Trans sportation and its predecessor, the Des -partinent of Public Works, bor the last few years, includ » ing the 1969 appropriatton of $57 000,000. No other evi- dence was introduced on this score and plaintitls’ motion to conform their ple ndings io the proof was granted. We will assume that [6 nit bit ‘OL conteins the Appropria: tion hill passed bi the New York Legislature in cate and “2 that the budget, procedures: sé forth by Article V HT, $Y 1-4 of New York State’s:C onstitution we re carried out. Ae ing is’a lump sum appropri tation‘ for the De spartinent of Transportation in the amount of $3Q1. SOO,000 Por thie pur poses therein stated, : | What puzzles is is why lamp stm appropr! tation vio- the Fifth and Pourt: fomthy Anti rent riehts af the. 4) vlaintiffs: -As ‘we under: tond The plaints ffs? claim, it ap- spears tot be haserk on ther | inp sun appropriation as (dis- tinenished. from an appropriation with more -particnlariza- tion. But partion! arization is not always necessary Or Ox- pnedient, especially. w here, road censtruetion is: involved. People y. Treinaiie, 8 NEYSA,-7 (1939). Bees ee In anv event, no evideiSe of authorities have heen of- foret. (other than to demmestrate that the appropriation ea timp sum), to Show thp eneonstitutionality of the ap propriation: and /o ‘or the allo eed yiol Intions of the plaintiffs? “fth and Fourte ith Amondmenf ‘rights. “Accord ing Ty the con: ti itritional ‘elal MNS of. the —. are dismissed, Let. this opinion stand for or, findings of fact and eon- clusions of law. Settle order on notice. poe s * he AS F. M URPITY, . 6 U.S. Pe: ese Datid, N ew 'Y ork, N.Y. July 11, 1969. a TPM, APPENDIX ee v Order of District Cau. Murphy, B¢ dated’ July 25, 1969. Plaintiffs having commenced these actions seeking de- claratory and-injunctiye relief, and defendants having duly appeared herein, and theése .actions having been consoli- dated for trial,.and the’ issues having been duly tried — “before this Court, without a Jury, ‘and this Court having rendered its opinion and madé findings .of fact and con- clusions of law herein on July 11, 1969, Iv 18 ADJUDGED; ‘DECLARED anh DECRE z D, that the construe-. tion of the Hudson River E xpressway by the State of. New York and-the Depaitment: of T) ransportati on of -thie State of New York involves the construction of dikes and -causeways over or’ in a navigable river of the Uni ted ‘States, to wit, the Hudson River, within. the meaning of Title 33 United States Code §§ 401 and 525 and Title 49 United: States Code § 1655, which ‘cons struction, in so far -as the same involves* tlre construction - of a-dike or dikes requires the corisent of the Congress of tlie United States and the Corps of Engineers of the. Departmerit: of the _ Army of the United States, whe n autharized ley the Secre- -tary of the Army of the U nited States, and, insofar as ‘the same involves. the: construction of a-- ‘ausewav or causeways, requires the consent of the Congress and the: -approval of the Secretary of Tran: ‘portation of the U nited States; and it’ is further : | Gube rep, Anau harp AND Decree, th: ut a. Cor ps of Enai-* neers, on or about January 27, 1969, execed its statutory, authority j In issuing a permit to the State of New York and the Department of Transportation a the’ State of Néw -York to dredee and’ fff m the Hudson “River for-the con- - ; struction of said Expressway dithent the prey erento ef the Seeretaas: ef Prapsportation of the ated States and in the abseiice of the concent of the Consrer ef.the Enited _ Btates, = 2 he, and the s sand, | is declared to he mn- > TPM. “TPM it is further Piet ee a mat tba! Order of District Court, cia J., dated